Issue: October 2016
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Breast Surgery Revisited: Liability Risks of the Resurgery Epidemic

Introduction

Breast Resurgery Liability Risks

The high rate of resurgery, following breast reconstruction after cancer treatment or other types of breast surgery, has been described as “epidemic.”

 

Resurgery related to complications and errors after breast surgery can cause physical and emotional injuries to patients. Not surprisingly, these injuries can lead to litigation. High awards and settlements can result.

 

In addition to claims for medical malpractice, negligence, and lack of informed consent, injuries related to breast reconstruction surgery or resurgery may result in other legal claims such as infliction of emotional distress, claims under contract law, and product liability.

 

Attorneys, physicians, insurers, employers, and other potential parties to litigation should be aware of the types of lawsuits and other liability issues that may arise in connection with injuries related to breast reconstruction surgery and resurgery.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim of malpractice or lack of informed consent for breast reconstruction surgery or a related procedure? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury related to breast reconstruction surgery or resurgery? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for a patient’s injury related to breast reconstruction surgery or resurgery? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for an employee’s injury related to breast reconstruction surgery or resurgery? And, what is a potential strategy for the employer to use? 


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence involving the patient’s breast reconstruction or second surgery.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving breast reconstruction or resurgery.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of malpractice or negligence involving breast reconstruction or resugery.

Employers:

Use this checklist to determine if the employee’s breast reconstruction or resugery is “work related” and occurred “in the course of the employment.”

Expert Analysis

What Surgical Options Are Available for Breast Reconstruction After Mastectomy?

Wojciech Dec, MD

What Insurance and Financial Challenges Do Woman Face After Mastectomy?  

Alisa Savoretti

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.  


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.  


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving breast reconstruction and resurgery?



Medical Examples

Breast Reconstruction and Resurgery

This section provides an overview of the issues concerning breast reconstruction and resurgery for cancer and other patients, detailed medical information on breast reconstruction, and resurgery risks and complications. This section also discusses the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on breast reconstruction and resurgery.


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Breast Surgery Revisited: Liability Risks of the Resurgery Epidemic

Table of Contents
Introduction

Expert Analysis
   Wojciech Dec, MD
   Alisa Savoretti

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Breast Reconstruction and Resurgery

Law and Medicine Resources